United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 12, 2004 October 22, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
No. 03-51171
HAROLD LLOYD SHIELDS; ET AL
Plaintiffs
DAN BALDWIN, Administrator for the Estate of Harold Lloyd Shields, Deceased
Appellant
v.
CAROL L TWISS; KERR COUNTY TEXAS
Defendants - Appellees
Appeal from the United States District Court for the Western District of Texas, San Antonio
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.
KING, Chief Judge:
Plaintiff Harold Shields filed this suit after officials in
Kerr County, Texas dropped charges against him for the aggravated
sexual assault of a child. Claiming that he never should have
been charged in the first place, Shields sued Kerr County and two
county employees for alleged violations of federal and state
laws. During the pendency of the lawsuit, Shields attempted to
1 stay the case to depose members of the grand jury that indicted
him. The district court issued orders that: (1) quashed the
depositions of the grand jurors; (2) denied Shields’s requests to
stay or continue the case while he sought state-court approval to
depose the grand jurors; and (3) granted summary judgment on all
counts in favor of the defendants. Shields appeals these
rulings. For the following reasons, we AFFIRM the judgment of
the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 1999, Kerr County Sheriff’s Deputy Carol L.
Twiss began investigating the sexual assault of a young girl,
“K.S.” During the course of the investigation, K.S. told
investigators that her grandfather and uncle had molested her.
She also said that two non-family members--one of whom she
referred to as “Mr. M”--were involved.
Deputy Twiss suspected that Harold Lloyd Shields was Mr. M.
Initially, the principal ground for suspicion appears to have
been the fact that Shields was acquainted with K.S.’s
grandfather. Subsequently, during an interview conducted by
Deputy Twiss and others, K.S. was presented with a photographic
lineup and identified a picture of Shields as resembling Mr. M.
In addition, Deputy Twiss and others interviewed Shields and
considered several of his responses suspicious.
Based on their investigation, Kerr County officials decided
to prosecute Shields. They began by seeking a grand-jury
2 indictment against him. As part of this process, Deputy Twiss
filed an affidavit and testified before the grand jury.
Ultimately, the grand jury indicted Shields on three counts of
aggravated sexual assault of a child. Shields subsequently
surrendered to Kerr County officials, was arrested, and paid a
non-refundable bond fee of $10,000 to secure his release pending
trial. Before trial, however, K.S. recanted her allegations
concerning Mr. M, and Kerr County dismissed the charges against
Shields.
Shields now contends that Deputy Twiss failed to conduct an
appropriate investigation. According to Shields, had an
appropriate investigation been carried out, it would have
revealed his innocence. In support of this contention, he points
to a series of facts that were inconsistent with his being Mr. M.
For example, due to impotence, he was unable to perform some of
the acts that K.S. alleged were done to her. Additionally, he
did not move to Texas until approximately two years after K.S.
said that Mr. M began molesting her. Shields also contends that
the photographic lineup shown to K.S. was flawed and prejudicial
because only the photograph of Shields bore physical
characteristics similar to K.S.’s description of Mr. M. Angered
by these perceived lapses on the part of Deputy Twiss and Donnie
Coleman, the Kerr County Assistant District Attorney who
3 prosecuted him, Shields sued.1
In September 2001, Shields filed his second amended
complaint. In it, he named as defendants Deputy Twiss and
Assistant District Attorney Coleman in their individual
capacities.2 He also named Kerr County, Texas as a defendant.
Proceeding under 42 U.S.C. § 1983, Shields alleged in his
second amended complaint that each of the defendants violated his
constitutional rights while acting under the color of state law.
Specifically, Shields asserted claims of unreasonable arrest,
unreasonable detention, and malicious prosecution under the
Fourth and Fourteenth Amendments. He further averred that Deputy
Twiss and Assistant District Attorney Coleman failed to conduct a
reasonable investigation. Moreover, he contended that Kerr
County should be held liable for these violations of his
constitutional rights because it failed to supervise Deputy Twiss
properly and to provide her with a manageable caseload, thereby
preventing her from conducting a reasonable investigation.
Similarly, he asserted that Kerr County did not properly train or
1 After Shields’s death in June 2002, Holly Rena Shields Robinson, the administrator of his estate, was substituted as the plaintiff in this case. Subsequently, Robinson was disqualified from being Shields’s personal representative by the District Court of McPherson County, Kansas, and Daniel L. Baldwin was appointed as the new administrator and personal representative. Accordingly, in June 2004, this court granted a motion to substitute Daniel Baldwin as the appellant. In the interest of clarity, the court will refer to the appellant as “Shields.” 2 On appeal, the claims against Donnie Coleman were dismissed by agreement of the parties.
4 supervise Deputy Twiss in the creation and presentation of
photographic lineups. Finally, Shields invoked the district
court’s supplemental jurisdiction and pleaded four tort claims
under Texas law against Twiss and Coleman: false arrest, false
imprisonment, malicious prosecution, and negligent investigation.
This case was originally assigned to the late Judge H.F.
Garcia. During discovery, Shields sought to depose several
members of the state grand jury that indicted him, ostensibly to
show that the indictment they returned was faulty because
exculpatory evidence had been withheld from them. The defendants
moved to quash the subpoenas, arguing that both federal and state
law require the proceedings of grand juries to be kept secret.
In response to these motions to quash, Shields moved the court
for leave to file a consolidated response. In his consolidated
response, Shields noted that there were no existing records of
the grand-jury proceedings, and he contended that, as a result,
he needed to depose the grand jurors to rebut the defendants’
reliance on the indictment to preclude his constitutional claims.
On January 7, 2002, the district court issued an order
granting the defendants’ motions to quash and ordering Shields’s
counsel not to contact any member of the Kerr County grand jury
that indicted Shields. This order was signed “Fred Biery
[district judge] for H.F. Garcia.” One day later, Judge Garcia
granted Shields’s motion to file a consolidated response.
Concerned that the court had not considered his consolidated
5 response when ruling on the motions to quash, Shields promptly
filed a motion for reconsideration, which then-District Judge
Edward Prado summarily denied.
Undeterred, Shields next petitioned a Texas state court to
permit him to depose the grand jurors. He also asked the
district court to stay this case pending the outcome of the
ancillary state-court proceeding. Judge Biery denied Shields’s
request for a stay in August 2002.
Each defendant filed a motion for summary judgment in March
2003. Later that month, this case was reassigned to Judge Royal
Furgeson. In July 2003, Judge Furgeson granted the defendants’
motions for summary judgment.
In his decision granting summary judgment for the
defendants, Judge Furgeson first held that Shields failed to
create a genuine issue of fact concerning whether Deputy Twiss
and Assistant District Attorney Coleman withheld information from
the grand jury. Accordingly, Judge Furgeson held that the grand
jury’s finding of probable cause precluded Shields’s Fourth
Amendment claims regarding his arrest and imprisonment. Judge
Furgeson further stated that even if the indictment had not been
returned, Shields’s claims would still fail because he did not
show that Twiss and Coleman should be denied qualified immunity
for acting unreasonably in determining that probable cause
existed. Second, Judge Furgeson found that Shields’s malicious-
prosecution claim was also precluded by the grand jury’s finding
6 of probable cause. Additionally, according to Judge Furgeson,
Shields’s malicious-prosecution claim failed because he did not
allege that either Twiss or Coleman acted with malice. Third,
Judge Furgeson found that there was no authority supporting a
constitutional claim for “unreasonable investigation.” Fourth,
Judge Furgeson found that Kerr County could not be held liable
because Shields put forward no evidence of any constitutional
violation. Likewise, Judge Furgeson found that Shields put
forward no evidence showing that Kerr County had a policy or
custom encouraging the use of unconstitutional photographic
lineups. Finally, Judge Furgeson found that summary judgment in
favor of the defendants was appropriate on Shields’s state-law
claims. In support of this conclusion, Judge Furgeson stated
that Shields’s failure to establish a genuine issue of fact
concerning his constitutional claims doomed his state-law claims
and, alternatively, that Shields had not presented evidence that
Twiss and Coleman should be denied official immunity under Texas
state law. Accordingly, Judge Furgeson granted summary judgment
for the defendants on all counts and dismissed Shields’s suit
with prejudice.
After summary judgment was granted against him, Shields
filed a motion for reconsideration under Rule 59. In this
motion, he asked the district court to vacate its final judgment
and stay the case while he appealed to the Texas Supreme Court an
adverse state-court ruling regarding his request to depose the
7 grand jurors. Judge Furgeson denied Shields’s motion, noting
that the district court had itself considered the discoverability
of the grand jurors’ testimony and refused to permit the
depositions.
Following the denial of his motion for reconsideration,
Shields filed the present appeal.
II. DISCUSSION
Shields raises three issues in his appeal. First, he
maintains that the district court erred in quashing the
depositions of the grand jurors. Second, he asserts that the
district court should have granted his request for a stay pending
the outcome of the ancillary state-court litigation. Third, he
contends that the district court erroneously determined that
there exist no genuine issues of material fact preventing the
entry of summary judgment. This court examines each of these
claims in turn.
A. The Request To Depose Grand Jurors
The court begins with Shields’s claim that the district
court erred when it quashed the depositions of the grand jurors.
According to Shields, since no record existed of the grand jury’s
proceedings, he needed to depose members of the grand jury to
prove that Deputy Twiss and Assistant District Attorney Coleman
withheld information from the grand jury. Shields contends that
by improperly quashing these depositions, the district court made
it impossible for him to prove his malicious prosecution and
8 civil rights claims.
This court reviews a district court’s decision to quash
deposition subpoenas for abuse of discretion. Theriot v. Parish
of Jefferson, 185 F.3d 477, 491 (5th Cir. 1999); Tiberi v. CIGNA
Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994).
At the outset, the court notes that under both federal and
state law, a general rule of secrecy shrouds the proceedings of
grand juries. See FED. R. CRIM. P. 6(e); Douglas Oil Co. of Cal.
v. Petrol Stops N.W., 441 U.S. 211, 218-19 (1979); TEX. CODE CRIM.
PROC. ANN. art. 20.02 (Vernon Supp. 2004); In re 5 Byrd Enters.,
980 S.W.2d 542, 543 (Tex. App.--Beaumont 1998, no pet.). Even
so, both federal and Texas law permit discovery of grand jury
material when the party seeking discovery demonstrates a
“particularized need” for the material. United States v. Procter
& Gamble Co., 356 U.S. 677, 682-83 (1958); accord FED. R. CRIM. P.
6(e)(3)(E)(i); TEX. CODE CRIM. PROC. ANN. art. 20.02(d); In re 5
Byrd Enters., 980 S.W.2d at 543. A party claiming a
particularized need for grand jury material under Rule 6(e) has
the burden of showing “that the material [it] seek[s] is needed
to avoid a possible injustice in another judicial proceeding,
that the need for disclosure is greater than the need for
continued secrecy, and that [its] request is structured to cover
only material so needed.” Douglas Oil Co., 441 U.S. at 222.
This burden must be met even when the grand jury in question has
concluded its operations, as is the case here. Id. While a
9 party can in limited circumstances obtain grand jury material by
showing a particularized need, the need for protection of the
workings, integrity, and secrecy of grand jury proceedings is a
well-established, long-standing public policy. The secrecy of
the grand jury proceedings is not something that is intruded into
except in rare circumstances.
In the present case, Shields has not shown a particularized
need for compelling the disclosure of grand jury information,
much less for compelling the depositions of grand jury members.
Shields claims that he needs to depose members of the grand jury
to prove that information was withheld from them. He has not,
however, put forward any evidence whatsoever showing that Twiss
or Coleman withheld information from the grand jury, a point
noted by the district court.3 Robinson v. Twiss, No. SA-01-CA-
0289-RF, slip op. at 9-10 (W.D. Tex. Jul. 9, 2003) (holding that
Shields provided no concrete evidence for his claim that
information was withheld from the grand jury). Twiss,
conversely, has testified under oath that she presented all
relevant information in her possession--both incriminating and
exculpatory--to the grand jury. Likewise, Donnie Coleman, the
assistant district attorney who presented the case against
Shields to the grand jury, testified under oath that Twiss gave
3 Indeed, for the most part, Shields does not allege that Twiss even possessed exculpatory information; rather, he maintains that she would have learned of exculpatory details if she had conducted a reasonable investigation.
10 the grand jury “the things . . . that matched up [and] the things
. . . that didn’t match up.”
Because Shields has utterly failed to rebut Twiss and
Coleman’s sworn testimony, the district court had no reason to
believe that any useful information would be uncovered if Shields
were allowed to depose the grand jurors. Without some evidence
to support Shields’s claims that the defendants withheld
exculpatory evidence, the district court certainly had no reason
to believe that these depositions were necessary to “avoid a
possible injustice,” one of the elements required for a showing
of a particularized need for grand jury material. See Douglas
Oil Co., 441 U.S. at 222 (holding that a party claiming a
particularized need for grand jury material must show that
disclosure is necessary to avoid a possible injustice in another
judicial proceeding). Shields has presented no evidence that
would justify a fishing expedition into the proceedings of the
grand jury. Accordingly, the district court did not abuse its
discretion when it granted the motion to quash.
Even if Shields had put forward evidence of his need for
grand jury material--something he has not done--there is still
the question of whether he could ever compel the depositions of
grand jury members. Shields has pointed to no authority for the
proposition that one can take the depositions of grand jury
members when, as is the case here, there is no transcript of the
grand jury proceeding. This court, like other courts, is unaware
11 of any authority supporting this proposition. See, e.g., United
States v. Roethe, 418 F. Supp. 1118, 1119 (D.C. Wis. 1976)
(“Furthermore, [the defendant] has suggested no authority, and I
am aware of none, in support of his request to conduct an
examination of the grand jurors.”). If depositions of grand
jurors could ever be taken--a matter as to which this court
expresses no opinion--it would take a far more substantial
showing of particularized need than what Shields has made here.4
Thus, the district court acted well within the bounds of its
discretion when it granted the motion to quash Shields’s
deposition notices.
B. The Request For A Stay
The court next turns to Shields’s claim that the district
court erred in denying his request to stay, abate, or continue
its disposition of the case pending further discovery.
This court reviews a district court’s denial of a motion for
continuance brought under FED. R. CIV. P. 56 for abuse of
discretion. See Liquid Drill, Inc. v. U.S. Turnkey Exploration,
Inc., 48 F.3d 927, 930 (5th Cir. 1995); Solo Serve Corp. v.
Westowne Assoc., 929 F.2d 160, 167 (5th Cir. 1991).
Both before and after summary judgment was granted against
4 Additionally, had Shields demonstrated a particularized need for deposing the grand jurors, the court would still have to address whether it can revisit the state court’s refusal to permit the depositions. Because Shields did not demonstrate a particularized need, however, the court need not reach this question.
12 him, Shields sought, and was denied, a stay or continuance from
the district court pending the final resolution of the collateral
proceeding that he initiated in state court in pursuit of
permission to depose the grand jurors. Shields now contends that
by not staying or continuing the case pending resolution of this
state-court litigation, the district court denied him a full and
fair opportunity to discover information essential to his
opposition to summary judgment, a denial that constitutes
reversible error. In support of this claim, Shields invites the
court’s attention to Anderson v. Liberty Lobby, 477 U.S. 242, 250
(1986), which holds that when a party is not given a full and
fair opportunity to discover information essential to its
opposition to summary judgment, the limitation on discovery is
reversible error.
Shields’s appeal of the district court’s denial of his
requests for a stay or continuance is undermined by the fact that
the state-court litigation has now been resolved against Shields.
Specifically, the Texas Supreme Court denied review in the
ancillary state-court proceeding on February 13, 2004, thereby
making permanent the state trial court’s denial of Shields’s
discovery request. In re Grand Jury Proceedings 198.GJ.20, 129
S.W.3d 140 (Tex.App.--San Antonio 2003, pet. denied).
Consequently, the issue of whether the proceedings in this suit
should have been stayed until the Texas Supreme Court acted is
moot and need not be addressed on the merits by this court.
13 C. The Decision To Grant Summary Judgment
Finally, the court turns to Shields’s claim that the
district court erred by granting summary judgment in favor of the
defendants.
This court reviews summary judgments de novo, applying the
same standard as the district court. See Fierros v. Tex. Dept.
of Health, 274 F.3d 187, 190 (5th Cir. 2001). Specifically,
“summary judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(C)). Where, as
here, the burden of production at trial ultimately rests on the
non-movant, “the movant must merely demonstrate an absence of
evidentiary support in the record for the non-movant’s case.”
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.
2000). By contrast, the nonmoving party must come forward with
“specific facts showing that there is a genuine issue for trial.”
FED. R. CIV. P. 56(e). According to the Supreme Court, “there is
no issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party.” Anderson, 477 U.S. at 249. When a district court
reviews the support for a nonmovant’s case, the “evidence of the
14 non-movant is to be believed, and all justifiable inferences are
to be drawn in [its] favor.” Id. at 255.
1. Shields’s Federal Law Claims
In his second amended complaint, Shields alleges six
constitutional violations that he claims are actionable under
42 U.S.C. § 1983: (1) unreasonable arrest; (2) unreasonable
detention; (3) malicious prosecution; (4) unreasonable
investigation; (5) failure to supervise (against Kerr County)
resulting in an inadequate investigation; and (6) failure to
supervise and train (against Kerr County) with respect to the use
of photographic lineups. The court examines each of these claims
in turn.
With respect to Shields’s unreasonable arrest, unreasonable
detention, and malicious prosecution claims, Shields principally
contends that the district court erred in determining that he had
not raised a genuine issue of material fact regarding whether
there existed probable cause to charge and arrest him. To the
extent that Shields complains of the fact that charges were filed
against him, he has not stated a cognizable federal claim after
this court’s en banc decision in Castellano v. Fragozo, 352 F.3d
939, 953 (5th Cir. 2003) (en banc) (“[C]ausing charges to be
filed without probable cause will not without more violate the
constitution. So defined, the assertion of malicious prosecution
states no constitutional claim.”).
Even so, Castellano does permit a plaintiff to assert a
15 Fourth Amendment claim based on an arrest made without probable
cause. Id.; see also Sorenson v. Ferrie, 134 F.3d 325, 328 (5th
Cir. 1998) (“Whether an arrest is illegal . . . hinges on the
absence of probable cause.”). This circuit has held, however,
that once “facts supporting an arrest are placed before an
independent intermediary such as a . . . grand jury, the
intermediary’s decision breaks the chain of causation” for these
constitutional violations. Taylor v. Gregg, 36 F.3d 453, 456
(5th Cir. 1994) (citing Wheeler v. Cosden Oil & Chem. Co., 744
F.2d 1131, 1132 (5th Cir. 1984)). Nevertheless, these claims may
be maintained if the plaintiff affirmatively shows that “the
deliberations of that intermediary were in some way tainted by
the actions of the defendants.” Taylor, 36 F.3d at 457 (quoting
Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988)). Shields
claims that he can maintain his unreasonable arrest and detention
claims in light of the indictment because exculpatory information
was withheld from the grand jury and, accordingly, its
deliberations were tainted. However, as previously discussed, he
has put forward no evidence whatsoever that exculpatory
information was withheld from the grand jury, whereas both
Coleman and Twiss have testified under oath that they provided
exculpatory information to the grand jury. Accordingly,
Shields’s conclusory allegations that information was withheld
are insufficient to create a fact issue warranting the denial of
summary judgment, and Twiss cannot be held liable for
16 unreasonable arrest or unreasonable detention based on the
absence of probable cause. See, e.g., Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (explaining that
“conclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden” at
summary judgment).
Regarding Shields’s “unreasonable investigation” claim,
Shields has pointed to no legal basis for a § 1983 action of this
sort, and the court knows of none. Hence, this claim also fails.
Finally, Shields asserts two failure-to-supervise claims.
First, he claims that Kerr County overworked Twiss and made it
impossible for her to investigate her cases properly, resulting
in the Fourth Amendment violations that Shields alleges. Second,
Shields claims that Kerr County did not properly train Twiss in
the use of photographic lineups and, as a result, Twiss used an
unconstitutionally suggestive lineup during her investigation of
him.5 With respect to Shields’s first failure-to-supervise claim
5 In his second amended complaint, Shields argues that Kerr County should be held liable for its failure to train Twiss in the use of photographic lineups. In his response to the defendants’ motion for summary judgment and in his appellate brief, he appears to expand the scope of this claim by attempting to hold Twiss personally liable for this violation as well. As the district court correctly noted, however, Shields has pointed to no authority suggesting that the use of an improper lineup constitutes a distinct constitutional violation giving rise to money damages under § 1983. The one case that Shields does cite, United States v. Merkt, 794 F.2d 950, 958 (5th Cir. 1986), only pertains to the admissibility of pretrial photographic identifications--it does not confer liability on individual defendants under § 1983. Hence, Shields’s attempt to hold Twiss
17 (i.e., that Kerr County overworked Twiss and did not supervise
her workload), this circuit has held that municipal liability
“under section 1983 attaches where a deprivation of a right
protected by the Constitution or by federal law is caused by an
official policy.” Burge v. St. Tammany Parish, 336 F.3d 363, 369
(5th Cir. 2003). Here, however, Shields has not presented a
genuine issue of fact concerning whether Deputy Twiss deprived
him of any constitutional or federal rights. Thus, Kerr County
cannot be held liable for overworking or not properly supervising
Twiss. As for Shields’s second failure-to-supervise claim (i.e.,
that Kerr County did not adequately train Twiss in the use of
photographic lineups), Shields can only prevail by showing that
an official policy or custom “was a cause in fact of the
deprivation of rights inflicted.” Spiller v. City of Tex. City,
Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall
v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).
To prevail, Shields must also point to evidence showing that Kerr
County adopted the policy or custom in “deliberate indifference
to the constitutional rights of its inhabitants.” City of Canton
v. Harris, 489 U.S. 378, 392 (1989). Shields has put forward no
evidence that Kerr County had a policy or training program that
encouraged the use of unconstitutional photographic lineups.
Likewise, he has not pointed to any evidence that Kerr County was
personally liable for the photographic lineup fails.
18 deliberately indifferent to the constitutional rights of its
residents. Accordingly, this failure-to-supervise claim, like
Shields’s other federal claims, fails.
We recognize that this is an unfortunate case, but Shields
has not established a constitutional violation.
2. Shields’s State Law Claims
While Shields raises a number of state-law claims in his
second amended complaint, on appeal he only briefs his allegation
of malicious prosecution against Deputy Twiss. Accordingly,
since Shields failed to brief his other state-law claims, the
court considers them waived. See FED. R. APP. P. 28(a)(9)(A); L &
A Contracting Co., 17 F.3d 106, 113 (5th Cir. 1994). Only
Shields’s malicious-prosecution claim under Texas law remains.
Under Texas law, a plaintiff alleging malicious prosecution
must establish: (1) the commencement of a criminal prosecution
against him; (2) that the defendant caused the prosecution to be
commenced; (3) termination of the prosecution in his favor; (4)
his innocence; (5) the absence of probable cause for the
proceeding; (6) malice in filing the charge; and (7) damages.
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.
1997).
When the district court ruled on Shields’s state-law
malicious-prosecution claim under Texas law, it found that: (1)
his claim failed because Shields had not created a genuine fact
issue regarding the probable-cause and malice elements; and (2)
19 even if Shields could have proven the probable-cause and malice
elements, his malicious-prosecution claim still failed because
Deputy Twiss was entitled to official immunity. In his appellate
brief, Shields briefly discusses the district court’s holding
regarding probable cause. He does not, however, ever mention--
much less contest--the district court’s alternative holding on
official immunity. Accordingly, the district court’s
unchallenged holding on official immunity stands, Shields’s
malicious-prosecution claim under Texas law fails, and the court
need not address his argument regarding the probable-cause
element of this claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.